IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

May 12, 2003 Session

DLLP, LLC, dba BIG NINE PRODUCTIONS v. INTERNATIONAL

CREATIVE MANAGEMENT, INC., aka ICM, ET AL.

Appeal from the Circuit Court for Hamilton County

No. 00C1945 Samuel H. Payne, Judge

FILED JUNE 25, 2003

No. E2002-02452-COA-R3-CV 

DLLP,LLC, dba Big Nine Productions (“DLLP”) sued International Creative Management, Inc., aka

ICM (“ICM”) and Rock On Tours, Inc. (collectively “the defendants”) for damages and other relief

arising out of the alleged failure of the defendants to follow through with a concert featuring the

defendants’ principal, a musical group known as the Moody Blues. The defendants moved the court

to compel arbitration under an alleged agreement providing for arbitration in New York City. The

trial court ordered arbitration, but decreed that it would be conducted in Chattanooga. The

defendants appeal, arguing that the trial court was without authority to order arbitration other than

in New York City. By way of a separate issue, the appellee, DLLP, contends that the trial court

ordered “non-binding” arbitration and that it erred in doing so in the absence of the parties’ consent,

said consent being required by Tenn. Sup. Ct. R. 31, Sec. 3(d). It seeks an outright reversal of the

court’s order. We hold that the trial court ordered “binding” arbitration; that such arbitration was

required under the terms of the parties’ agreement; and that the trial court erred in failing to order

that the arbitration would be conducted in New York City. Accordingly, we modify the trial court’s

order. As modified, the order is affirmed.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed as

Modified; Case Remanded

CHARLES D. SUSANO,JR.,J., delivered the opinion of the court, in which HERSCHEL P. FRANKS and

D. MICHAEL SWINEY, JJ., joined.

Robert E. Cooper, Jr., Samuel L. Felker, and Andrea T. McKellar, Nashville, Tennessee, attorneys

for appellants, International Creative Management, Inc., aka ICM, and Rock on Tours, Inc.

H. Wayne Grant, Harry Cash, and Steven W. Grant, Chattanooga, Tennessee, attorneys for appellee,

DLLP, LLC, dba Big Nine Productions.
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OPINION

I.

DLLP alleged in the amended complaint that it negotiated with the defendants regarding

DLLP’s desire to promote a Moody Blues concert in Chattanooga. Initially, DLLP proposed that

the concert be held at Finley Stadium on the campus of the University of Tennessee–Chattanooga.

The amended complaint sets forth the following additional operative facts:

Throughout March and April 1999, [DLLP] and Defendants

negotiated the terms of the parties’ agreement. On March 22, 1999,

[DLLP’s broker] faxed to [the defendant] ICM’s representative, Terry

Rhodes, a letter setting forth the proposed terms of the Chattanooga

concert. On April 21, 1999, [DLLP’s broker] faxed a second letter to

Terry Rhodes requesting that [the defendant] ICM approve the

concert in Chattanooga. . . .

Pursuant to the terms of the document, the concert was to be held on

August 19, 1999. [DLLP] agreed to pay [DLLP’s broker] $10,000 for

brokering the deal between [DLLP] and ICM. [DLLP] further agreed

to pay the Moody Blues $100,000 or fifty percent (50%) of box office

gross proceeds after taxes. [The defendant] ICM, as agent[] of the

Moody Blues, was to receive $50,000 immediately and the balance

was to be payable on the night of the performance. [DLLP] was to be

responsible for all other production and promotion costs.

Although numerous documents outlining terms of the negotiation

were exchanged between the parties, no formal contract was ever

executed between the parties.

Sometime between April 30, 1999, and May 6, 1999, [DLLP] was

advised that Finley Stadium would no longer be available for the

Moody Blues concert. [DLLP] contacted other possible venues, and

was able to secure Engel Stadium as a [sic] alternative venue.

[DLLP] notified Defendants of the new venue, and Defendants

approved the change of venue.

On May 6, and May 10, 1999, [DLLP] wired a total of $60,000 to

[the defendant] ICM and [DLLP’s broker]. [DLLP] then undertook

to perform all the tasks which were necessary to promote and produce

the Moody Blues concert, including, but not limited to, securing

contracts with representatives of the Chattanooga Symphony and

Opera Association, the Johnson Group; for advertising and
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marketing, the University of Tennessee box office; for the production

and sales of tickets, the Apex Electric Company, Inc.; for electrical

stage work, the Chattanooga Tent Company, Advantage Printing and

Mailing Services, Engel Stadium, and other companies related to

producing and promoting the concert.

(Paragraph numbering in original omitted) (emphasis added). The amended complaint goes on to

allege that the defendants refused to allow the Moody Blues to perform in Engel Stadium because

they objected to the group performing in a baseball stadium. The concert was never held. DLLP

alleges breach of contract, unjust enrichment, conversion, fraudulent misrepresentation, negligent

misrepresentation, and breach of warranty. It seeks money damages and other relief.

The defendants filed a motion to compel arbitration, taking the position that there is a writing

which memorializes the parties’ agreement and that this writing contains a provision requiring

arbitration in New York City under the laws of the state of New York.

Following a number of hearings, the trial court entered an order on September 3, 2002,

which, as pertinent to the issues on this appeal, decrees that

the foregoing case shall be submitted to arbitration under the laws of

arbitration of the State of Tennessee, said arbitration to be conducted

in Chattanooga, Tennessee by an arbitrator selected by the parties. If

the parties are unable to agree on the identity of an appropriate

arbitrator, the Court shall appoint a [sic] an arbitrator upon being

notified by the parties that the arbitrator cannot be selected by

agreement.

II.

The defendants’ brief raises the following issue:

Was there a contract between the parties in which they agreed to

arbitrate in New York City any disputes between them arising out of

their contractual relationship?

DLLP contends that the trial court ordered non-binding arbitration and that it had no authority to do

so in the absence of the consent of the parties. It relies upon Tenn. Sup. Ct. R. 31, Sec. 3(d).

III.

The parties have a sharp disagreement as to exactly what the trial court ordered in this case.

DLLP contends that the court ordered non-binding arbitration, while the defendants assert that the

court decreed binding arbitration. In support of their respective positions, both parties direct us to
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certain cryptic comments the trial court made during the three hearings in the instant case. These

comments, some of which tend to support each party’s side, are not controlling. “A Court speaks

only through its written judgments, duly entered upon its minutes.” Sparkle Laundry & Cleaners,

Inc. v. Kelton, 595 S.W.2d 88, 93 (Tenn. Ct. App. 1979). When interpreting a trial court’s decree,

we cannot rely upon comments made from the bench when those comments were not incorporated

into the court’s order. Rather, we must look only to the language of that order, at least to the extent

that the language is clear and unambiguous.

In the instant case, the trial court decreed that the case “be submitted to arbitration.” Since

the parties did not consent to non-binding arbitration pursuant to Tenn. Sup. Ct. R. 31, Sec. 3(d), the

trial court was without authority to order such arbitration. We can only conclude from this that the

trial court ordered traditional, i.e., binding, arbitration. We find this issue in favor of the defendants.

IV.

The trial court decided this case based upon the pleadings, affidavits, and other papers filed

by the parties. The court did not hold an evidentiary hearing on the issue of whether the parties had

agreed to arbitrate any disputes arising out of their contractual relationship. Accordingly, the trial

court’s decision on this issue is in the nature of summary judgment and we will review it as such.

Summary judgment is only appropriate “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter

of law.” Tenn. R. Civ. P. 56.04. In deciding this case, we “must take the strongest legitimate view

of the evidence in favor of the nonmoving party, allow all reasonable inferences in favor of that

party, and discard all countervailing evidence.” Byrd v. Hall, 847 S.W.2d 208, 210-11 (Tenn. 1993).

Since a motion for summary judgment presents a pure question of law, our review is de novo with

no presumption of correctness as to the trial court’s judgment. Gonzales v. Alman Constr. Co., 857

S.W.2d 42, 44 (Tenn. Ct. App. 1993). We must decide anew if summary judgment is appropriate.

V.

The question for us is whether the facts show, without dispute, that there was a contract

between DLLP and the defendants that included an agreement to arbitrate; and, if so, whether

arbitration is required to be held in New York City according to the terms of that contract. 

In its brief, DLLP contends that it received a proposed written contract from the defendants

at the end of April, 1999. It is not disputed that the proposed contract contains an arbitration

provision in the following language:

Any claim or dispute arising out of or relating to this agreement or the

breach thereof shall be settled by arbitration in New York, New York

in accordance with the rules and regulations then obtaining of the
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American Arbitration Association governing three-member panels.

The parties hereto agree to be bound by such award in such

arbitration and judgment upon the award rendered by the arbitrators

may be entered in any court having jurisdiction thereof.

Within the next two weeks, DLLP made some changes to the contract, most notably the change in

venue from Finley Stadium to Engel Stadium, signed the proposed contract that the defendants had

sent to it, and forwarded the two-page contract with the Engel Stadium addendum to the defendants.

DLLP asserts that its changes constituted a counteroffer. Approximately two months later, the

defendant ICM sent a letter to DLLP, which referenced an earlier conversation in which DLLP

agreed to wire a $50,000 payment to ICM. DLLP argues that this letter is proof that the defendants

never accepted DLLP’s counteroffer. Hence, so the argument goes, the three-page writing, a copy

of which is attached as an appendix to this opinion, is not the parties’ agreement. 

The position taken by DLLP on this appeal – that the writing incorporating the change to

Engel Stadium was never accepted by the defendants – is diametrically opposed to its position

asserted in the amended complaint. In that document, DLLP clearly alleges that it “notified

Defendants of the new venue, and Defendants approved the change of venue.” (Emphasis added).

The only fair reading of this allegation, when considered in the light of other facts that are not in

dispute, is that the three-page document attached to this opinion was signed by DLLP, mailed to the

defendants, and accepted by them. Under the circumstances of this case, it does not matter that it

was not signed by the defendants. See Carter v. Richards, C/A No. 116, 1990 WL 209330, at *3

(Tenn. Ct. App. W.S., filed Dec. 12, 1990) (“When a contract between two parties which is

contemplated to be signed by both is reduced to writing and signed by only one of them, but accepted

by the other, it becomes in contemplation of the law, a written binding contract on both.”) quoted

inBuddy Lee Attractions, Inc. v. William Morris Agency, Inc., 13 S.W.3d 343, 350 (Tenn. Ct. App.

1999).

It is well-established that a party will not be permitted to take a position on appeal that is

contrary to a position that it took at trial. Clement v. Nichols, 186 Tenn. 235, 237, 209 S.W.2d 23,

24 (1948); Estate of Schultz v. Munford, Inc., 650 S.W.2d 37, 40 (Tenn. Ct. App. 1982). That is

precisely what DLLP is attempting to do in this case. It is clear, under Tennessee law, that DLLP

cannot reverse its trial position on this appeal. Id.

The fact of the matter is that DLLP pursued inconsistent positions at trial and is continuing

to attempt to straddle these positions on appeal. Our analysis starts with the recognition that DLLP

cannot escape the fact that the addendum changing the venue to Engel Stadium is central to their

claim for relief against these defendants. This is obviously what prompted its assertion that the

addendum was “approved” by the defendants; but this assertion proves too much. This is because

the addendum is inextricably connected to the two-page document that its representative signed and

sent to the defendants. Simply stated, the addendum upon which DLLP relies is clearly an addendum

to the two-page contract originally proposed by the defendants. That signed document brings into
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In a third affidavit, Rhodes asserted that he attached the unsigned contract to the first affidavit because he was

then unable to find the agreement signed by DLLP’s representative. When he found the signed three-page contract, he

attached it to the second affidavit. 

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play the arbitration agreement. Try as it might, DLLP cannot rely on the addendum and, at the same

time, disavow the agreement to arbitrate.

DLLP attempts to make out a genuine issue of material fact. It claims that three separate

affidavits by one of the defendants’ witnesses reflect contradictory positions. In his initial affidavit

filed in the trial court, Terry Rhodes, an agent of the defendant ICM, attached an unsigned copy of

the first two pages of the three-page document attached as an appendix to this opinion. He asserted

that this was the agreement between the parties. In his second affidavit, he attached the three-page

signed agreement, including the addendum regarding Engel Stadium, and said that it reflected the

agreement of the parties. Even assuming these two affidavits1 contain conflicting statements, they

address a matter that is no longer material. The parties have moved beyond this point. This is

because DLLP does not dispute that it transmitted the attached signed three-page document to the

defendants; it only contends that its transmission constituted a counteroffer that was not accepted.

As we have previously noted, DLLP is precluded from taking this position. In any event, the only

material issue raised by DLLP pertaining to the arbitration provision is whether the three page

document in which it is found was accepted by the defendants. Any inconsistency in the Rhodes

affidavits is rendered immaterial by DLLP’s position. Hence, it has no bearing upon the issue of

summary judgment.

As DLLP’s only basis for contending that there was no contract between the parties is

premised upon an unaccepted counteroffer, which we have now found to be without merit due to the

legal effect of the allegations of the amended complaint and the position taken by DLLP in the trial

court, we find that there was indeed a contract between DLLP and the defendants. Furthermore, we

find that this contract does contain an agreement to arbitrate any disputes in New York, New York.

Therefore, the trial court erred in ordering the parties to arbitrate in Chattanooga, Tennessee. “A

court is not at liberty to make a new contract for parties who have spoken for themselves.” Smithart

v. John Hancock Mut. Life Ins. Co., 167 Tenn. 513, 525, 71 S.W.2d 1059, 1063 (1934); see also

Jaffe v. Bolton, 817 S.W.2d 19, 25 (Tenn. Ct. App. 1991); Carrington v. W. A. Soefker & Son,

Inc., 624 S.W.2d 894, 897 (Tenn. Ct. App. 1981). Accordingly, we modify the trial court’s order

to reflect that the parties are to submit to arbitration in New York, New York, as contemplated by

their contract. 

VI.

The order of the trial court is affirmed as modified. This case is remanded for enforcement

of the trial court’s modified order, pursuant to applicable law. Costs on appeal are taxed to the

appellee, DLLP, L.L.C., dba Big Nine Productions.
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_______________________________ 

CHARLES D. SUSANO, JR., JUDGE